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199 F.

2d 85

TRADERS & GEN. INS. CO.


v.
SHOEMAKE et al.
No. 4478.

United States Court of Appeals Tenth Circuit.


September 29, 1952.

George E. Fisher, Oklahoma City, Okl. (James E. Grigsby, Oklahoma


City, Okl., on the brief), for appellant.
Duke Duvall, Oklahoma City, Okl. (Dudley, Duvall & Dudley, Oklahoma
City, Okl., on the brief), for appellees.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit
Judges.
PER CURIAM.

Trigg Drilling Company was engaged in the drilling of a deep well in


Oklahoma. A. J. Alexander and J. R. Townsend, employees of the company,
were working at the well. Ernest L. Shoemake and Ernest L. Shoemake, Jr.,
were co-partners engaged in business as Shoemake Butane Company. While
butane gas was being delivered from a truck owned by Shoemake Butane
Company to a storage tank at the well an explosion occurred and Alexander
and Townsend sustained personal injuries. An award was made to each of the
injured workmen under the Workmen's Compensation Act of the state. Traders
& General Insurance Company, the insurance carrier of Trigg Drilling
Company, paid the awards and thereafter instituted this action against Ernest L.
Shoemake and Ernest L. Shoemake, Jr., to recover as damages the amounts it
has paid. The issues as finally joined were negligence of the defendants and
contributory negligence on the part of Alexander and Townsend. The cause
was tried to a jury; a verdict in favor of the defendants was returned; judgment
was entered accordingly; and the plaintiff appealed.
The only contention urged for reversal of the judgment is that the verdict of the

jury in favor of the defendants is not sustained by any substantial evidence. But
plaintiff did not move for a directed verdict, and it is well settled that such a
motion or other like request is necessary to raise on appeal the legal question of
the insufficiency of the evidence to support the judgment. In the absence of a
motion or request of any kind for a directed verdict, the insufficiency of the
evidence to support the verdict and judgment based thereon is not open to
review in this court. New York Life Insurance Co. v. Doerksen, 10 Cir., 75
F.2d 96; Baten v. Kirby Lumber Corp., 5 Cir., 103 F.2d 272; Emanuel v.
Kansas City Title & Trust Co., 8 Cir., 127 F.2d 175; Edwards v. Craig, 7 Cir.,
138 F. 2d 608; Itzkall v. Carlson, 2 Cir., 151 F.2d 647; Jorgensen v. York Ice &
Machinery Corp., 2 Cir., 160 F.2d 432, certiorari denied, 332 U.S. 764, 68 S.Ct.
69, 92 L.Ed. 349; Boston Insurance Co. v. Fisher, 8 Cir., 185 F.2d 977.
The judgment is Affirmed.

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